PPS Advocacy in 2017

A wild ride in Washington, D.C.

By Jerry Connolly, PT, CAE

October 10, 2017

It’s been a wild ride in Washington during the first eight months of the 115th Congress and the Trump administration.

The president and Republican congressional leaders made good on their promise to attempt to repeal and replace Obamacare. The House passed a bill with the narrowest of margins, but the measure was not to the liking of the Senate Republican caucus. It also proved to be very unpopular with the general public as GOP House members heard from discontented and disapproving constituents when they were home on breaks.

The Senate decided to go its own route only to fail not once, not twice, but three times before Majority Leader Mitch McConnell (R-KY) declared the health care debate over and his intent to move on to tax reform.

This failure in the Senate was surprising and significant because of McConnell’s decision to use a parliamentary maneuver known as Budget Reconciliation, which would allow consideration of such legislation to escape the prospect of a filibuster and gain Senate approval with only 51 senators voting for the measure. This approach counted on Vice President Mike Pence breaking the 50–50 tie in order for the bill to pass the Senate.

The Senate Democrats and the general public, as well as several Republican governors, resisted strenuously the attempts by the GOP to demolish Medicaid expansion; repeal the individual and employer mandates; allow states to make decisions regarding essential health benefits; and allow insurers to offer bare bones plans with questionable coverage provisions, including very high deductibles and copays, and to deny coverage to people with preexisting conditions if they have a gap in coverage longer than six months.

After McConnell declared the Obamacare effort dead, there was still some talk of making one more run in September using the strictly partisan approach. This may involve block-granting all health care federal dollars to the states. If that fails as expected, McConnell has signaled that any attempt to modify the Affordable Care Act (ACA) would need to employ a bipartisan approach, which is anathema to most of his Republican colleagues. These senators have borne the brunt of President Trump’s public criticism and shaming.

Health care issues, specifically repeal and replacement of Obamacare, occupied much of Congress’s attention from January through July. The uncertainty has created instability in numerous marketplaces across the country. Insurers have signaled intentions to exit various markets because of their inability to make accurate actuarial projections. Consequently, it is believed that more legislation may be considered later this year aimed at stabilizing the insurance markets.

Our Private Practice Section (PPS) was very active throughout this ACA repeal debate, paying close attention to the effects on our members and their patients if essential health benefits, Medicaid expansion, the mandates, and insurance regulations were weakened. PPS also criticized the Senate’s decision to create legislation in secret rather than using regular order involving public committee hearings, testimony, amendment, markup, and debate.

Since its passage in March of 2010, Obamacare has been challenged but has survived every court battle and ultimately been upheld by the US Supreme Court. If it dodges the latest effort to overturn, the ACA must be recognized as the law of the land; the new normal; the foundation on which future health policy will be built.

THERAPY CAP

We also have been very busy on the therapy cap issue and are grateful for all the grassroots support from PPS members in persuading their legislators to support House and Senate bills to repeal and replace the annual, per beneficiary, arbitrary therapy cap.

We have noted significant momentum in both chambers of Congress in addressing this issue this calendar year, which, as you know, is essential as the exceptions process expires on December 31.

The therapy cap was discussed in a public hearing of the Energy and Commerce Health Subcommittee on July 20. The CEO of the American Physical Therapy Association (APTA), Justin Moore, PT, DPT, testified eloquently and educated the committee on the need and method for permanently resolving this long-standing errant and discriminatory policy. We look forward to putting on the full court pressure now that Congress is in session.

This year marks the 20th anniversary of the adoption of the Medicare therapy cap, which has been poor policy from the beginning. In fact, it was more a budgetary gimmick than sound policy as its main purpose was to cut costs to help balance the federal budget. After all, it was the Balanced Budget Act of 1997 that imposed this cap on Medicare beneficiaries. Nevertheless, it stands as proof of how difficult it is to overturn even bad policy once it has been cemented into law. But as PPS members, as a profession, and in solidarity with our affected Medicare patients, we will strive to ensure that this disaster of a policy does not live to see its 21st anniversary.

OTHER LEGISLATION

While Obamacare repeal was occupying center stage, a few other pieces of health care legislation of interest have advanced, albeit relatively unnoticed. A report on notable issues included in PPS’s Advocacy Priorities for the 115th Congress follows.

VETERANS CHOICE PROGRAM

Congress passed, and President Trump signed, a bill with $3.9 billion in funding for Veterans Affairs (VA) health care programs, including temporary funding for the Veterans Choice Program (VCP). VCP, which was implemented under a VA reform bill (HR 3230) and signed into law in August 2014, aims to increase veterans’ access to care by providing federally subsidized care at non-VA facilities. VA Secretary David Shulkin announced in July that the program would run out of funding by mid-August because of an unexpected demand for private care and poor budget planning.

To address the issue, the House and Senate reached a bipartisan deal on an emergency spending bill that would allocate $2.1 billion to VCP over six months as well as $1.8 billion for workforce improvements and hiring at VA. The measure also would authorize 28 leases that would bolster VA’s capacity to provide health care.

TELEHEALTH

Progress has been made on two telehealth bills that PPS has endorsed.

The CONNECT for Health Act of 2017 (S.1016) would allow Medicare Advantage (MA) plans to decide what type of care they will reimburse, including care provided using telehealth—this flexibility will allow MA plans to reimburse for physical therapy. The bill also allows for any Medicare-enrolled provider or supplier to be reimbursed for care provided via telehealth as long as that care saves money with no negative impact on access to care or quality. The legislation also allows physical therapists (PTs) to be reimbursed for telehealth if the care is provided as part of a bundled or global payment program. At the time of this writing, there were 14 cosponsors of the Senate bill.

The House bill (HR 2556) was introduced on May 19 by Representatives Diane Black (R-TN), Peter Welch (D-VT), Gregg Harper (R-MS), and Mike Thompson (D-CA). This bipartisan companion bill has 16 cosponsors.

In the House, those same four Representatives also reintroduced their Medicare Telehealth Parity Act (HR 2550) on May 19. The legislative language is the same as last Congress. As of this writing, the bill now has 14 cosponsors and would expand the list of distantsite providers eligible for Medicare reimbursement for telehealth services to include physical therapists and several other therapy provider groups. This bill has no companion in the Senate thus far—something to talk with or write your senators about (hint, hint).

REGULATORY ACTIVITY

Two significant regulations are under consideration by the Centers for Medicare & Medicaid Services (CMS). In June and July, CMS published proposed rules on the Medicare Quality Payment Program (QPP) and the Medicare Physician Fee Schedule (MPFS), respectively. PPS President Terry Brown submitted letters on each of these proposed regulations on behalf of the Section. Both can be found on the PPS website.

Medicare Access and CHIP Reauthorization Act (MACRA)

On June 20, CMS released the proposed calendar year 2018 Updates to the Quality Payment Program. This proposed rule implements the second year of the new QPP, which includes two tracks: the Merit-Based Incentive Payment System (MIPS) and Advanced Alternative Payment Models (APMs). As you recall, MACRA replaced the Medicare Sustainable Growth Rate (SGR) formula with the new QPP, which aims to:

• Support care improvement by focusing on better outcomes for patients, decreased clinician burden, and preservation of independent clinical practice;
• Promote adoption of APMs that align incentives for high-quality, low-cost care across health care stakeholders; and
• Advance existing delivery system reform efforts, including ensuring a smooth transition to a health care system that promotes high-value, efficient care through unification of CMS legacy programs.

In the notice, CMS proposes to implement elements of MACRA that were not included in the first year of the program, including virtual groups, facility-based measurement, and improvement scoring. CMS also included proposals to continue implementing elements of MACRA that do not take effect in the first or second year of the Quality Payment Program (QPP), including policies related to the All-Payer Combination Option for identifying Qualifying APM Participants (QPs) and assessing eligible clinicians’ participation in Other Payer Advanced APMs. Although many items are proposed to carry over from the 2017 program year, other key flexibilities are implemented including a payment adjustment for the 2020 payment year ranging from -5 to + 5 percent (with a scaling factor) as required by law and a change in performance periods; that is, Quality and Cost will remain on a 12-month calendar performance period while Advancing Care Information and (Clinical) Improvement Activities will require a 90-day minimum performance period.

PPS chose to comment on these rule proposals despite the recognition that, by statute, physical therapists will not be eligible to participate, and therefore will not be affected by, the MIPS/MACRA program policies until 2019 at the earliest. We have previously urged earlier participation because physical therapists are, for a period of two years at minimum, left without payment incentive options due to the demise of the Physician Quality Reporting System (PQRS) program. Since this program will eventually be applied to private practice physical therapists, we offered comments on the following topics:

1. Low-Volume Threshold
2. Virtual Groups
3. Topped Out Measures
4. Certified Electronic Health Records
5. Calculation of the Threshold Scores for QP Determinations
6. Submission of Information for Advanced APM Determinations
7. Advancing Care Information
8. Physician-Focused Payment Models (PFPMs)
9. Small Practice Bonus

Furthermore, we urged caution and reminded CMS that since these regulations will have been in effect for at least two years before PTs are considered eligible for the program, it would not be appropriate to automatically apply the then existing policies to the newly eligible professionals. We emphasized that when and if the QPP policies affect us, we are going to require incremental application of policy provisions and “ramp-up” time similar to that afforded physicians who were affected by the policies at the outset of the program.

We also pointed out that we were commenting on program policies that do not (yet) apply to physical therapists in private practice but are likely to eventually affect us. Our comments were offered in response to the specifics contained in the proposed rule and are not to be construed as an affirmation that program policies applied initially to physicians can be automatically extended to nonphysician providers. We expressly reserved the right to offer more extensive and specific comments when and if the QPP policies are applied to physical therapists in private practice.

Medicare Physician Fee Schedule

The proposed 2018 Medicare physician fee schedule (MPFS) released by CMS in early July included some positive news for physical therapists—a proposal to maintain the values of some current procedural terminology (CPT) codes commonly used by PTs, and even increase values for a few. The rule as proposed is considered a win for the profession and its ability to serve patients, as CMS has regularly targeted the rehabilitation professions for cuts. CMS had been reviewing many of the CPT codes as “potentially misvalued,” putting them at risk for sizable reductions. The proposed rule included no such reductions, a reflection of several years of work by APTA’s team of experts who have established valuable relationships with, and earned the respect of, members of the panels convened and overseen by the American Medical Association (AMA); namely, the Current Procedural Terminology (CPT) Advisory Committee and the RVS (Relative Value Scale) Update Committee (RUC). In fact, proposed increases in a few of the codes further underscored the effectiveness of those efforts and the value of these long-term relationships.

While the first seven months of this year have been tumultuous, it is certain that the health policy rollercoaster is not going to slow down anytime soon. This means that we will be calling on PPS members frequently as these legislative and regulatory policy issues gear up for action. As always, your participation in the advocacy process is what determines our success.

Jerome Connolly, PT, CAE, is a registered federal lobbyist whose firm, Connolly Strategies & Initiatives, has been retained by PPS. A physical therapist by training, he is a former private practitioner who throughout his career has served in leadership roles of PPS and APTA. Connolly also served as APTA’s senior vice president for health policy from 1995 to 2001.